Appointment of an arbitrator cannot be withheld pending the decision of the reference pending before the Constitution Bench of the Supreme Court.

JUDGMENT

Navin Chawla, J. (Oral)--This petition has been filed under Section 11(6) of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as the `Act.) seeking appointment of a Sole Arbitrator for adjudicating the disputes that have arisen between the parties in relation to the Agreement to Sell dated 17.06.2019/07.08.2019 with respect to the built-up entire first floor without terrace/roof rights, and 1/4th car parking space/share in stilt parking area (below ground floor) of the property bearing No.3310/B, Ranjeet Nagar, New Delhi-110008 (referred to as "subject property"), which admittedly belongs to the respondents.

2. The Arbitration Agreement between the parties is contained in Clause 10 of the Agreement to Sell.

3. Disputes having arisen between the parties, the petitioner invoked the Arbitration Agreement vide notice dated 06.09.2022. The respondents, however, vide reply dated 28.09.2022, refused appointment of an Arbitrator, forcing the petitioner to file the present petition.

4. The learned counsels for the respondents submit that the Agreement to Sell relied upon by the petitioner is a fabricated document. In support of this submission, they state that the cheques that have been mentioned in the Agreement to Sell as a mode of payment of part-sale consideration were, in fact, given to the respondents by the builder-M/s Mega Construction Company Pvt. Ltd. under the Collaboration Agreement-cum-Agreement to Sell dated 29.05.2019 executed by the respondents with the said builder.

5. They further submit that the petitioner was, in fact, a nominee of the builder and, as the builder has failed to discharge its obligations under the Collaboration Agreement, in terms of Clause 17 of the Collaboration Agreement, the petitioner presently has no rights to enforce against the respondents. They submit that the respondents are already in arbitration with the said builder for adjudication of the disputes that have arisen between the said parties under the Collaboration Agreement. The petitioner has to necessarily await the outcome of such arbitration proceedings. They submit that the claim of the petitioner for arbitration is, therefore, premature.

6. The learned counsels for the respondents further submit that the purported Agreement to Sell being not properly stamped, reference to arbitration, in any case, cannot be made unless the said document is properly stamped on its impounding.

7. They further submit that this Court by an order dated 29.04.2022 passed in O.M.P.(I) (COMM.) 135/2022 titled Anil Seth & Anr. v. M/s Mega Construction Company & Ors., has restrained the builder from parting with possession or creating any third-party rights, title or interest in any portion of the subject property till further orders. The petitioner being the nominee of the builder is equally bound by the said interim order.

8. In support of their objections, they place reliance on the judgments of the Supreme Court in NTPC Ltd. v. SPML Infra Ltd., 2023 SCC OnLine SC 389; Indian Oil Corporation Limited v. NCC Limited, (2023) 2 SCC 539; and Bharat Rasiklal Ashra v. Gautam Rasiklal Ashra and Another, (2012) 2 SCC 144.

9. On the other hand, the learned counsel for the petitioner submits that the denial of the respondents for arbitration is mala fide. He submits that the respondents have admittedly executed a Sale Deed dated 13.12.2019 transferring the ground floor of the subject property to the petitioner herein. The cheques which have been mentioned as constituting part of sale consideration in the Sale Deed are also mentioned in the Collaboration Agreement between the respondents and the builder as having been handed over by the builder to the respondents under the Collaboration Agreement. He submits that, therefore, the cheques which have been taken from the petitioner have been shown inter se between the builder and the respondents in the Collaboration Agreement to which the petitioner is not bound and cannot be prejudiced.

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